Opinion
6 Div. 842.
April 26, 1923.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Grace Simpson, of Birmingham, for appellant.
The complaint was not subject to demurrer. Tel. Co. v. Whitson, 145 Ala. 426, 41 So. 405; Tel. Co. v. Appleton, 190 Ala. 283, 67 So. 412; Tel. Co. v. Snell, 3 Ala. App. 263, 56 So. 854; Tel. Co. v. Jackson Lumber Co., 187 Ala. 629, 65 So. 962; Tel. Co. v. Brown, 6 Ala. App. 339, 59 So. 329; Tel. Co. v. Hawkins, 14 Ala. App. 295, 70 So. 12; Tel. Co. v. Robbins, 3 Ala. App. 234, 56 So. 879; Western Union Tel. Co. v. Russell, 4 Ala. App. 485, 58 So. 938.
Tillman, Bradley Baldwin, and Cabaniss, Johnston, Cocke Cabaniss, all of Birmingham, for appellee.
Counts cannot be joined in a complaint, unless the same plea may be interposed to each, and the same judgment rendered on all counts. McCrummen v. Campbell, 82 Ala. 566, 2 So. 482; Spence v. Thompson, 11 Ala. 746; Eskridge v. Ditmars Co., 51 Ala. 245; 30 Cyc. 131.
The complaint in this case declares against two defendants jointly in three of the counts, and against each of them separately in the other counts respectively. Such a complaint violates a fundamental rule of action and procedure at law.
In our early case of Childress v. McCullough (1837) 5 Port. 54, 62 (30 Am. Dec. 549), it was said:
"It is a well-recognized rule that courts of law will not take cognizance of distinct and separate claims or liabilities of several persons in one suit, though standing in the same relative situations."
So in 20 R. C. L. 677, § 16, the rule is stated thus:
"Where the causes of action involve no joint liability, and the grounds on which a recovery is sought against two or more persons are essentially so different that they constitute different causes of action, they cannot be jointly sued."
And in 1 Corp. Jur. 1072, § 223, it is said that —
"When two or more parties are guilty of a joint tort, they may be sued jointly or severally; but a count for a joint cause of action cannot be joined with counts for several causes."
The misjoinder here is not of parties merely, but of counts which seek to recover severally on separate causes of action against different defendants.
We cannot avoid the conclusion that the demurrers aptly pointing out this defect were properly sustained to the complaint as a whole; and judgment final was properly rendered for defendant, in view of plaintiff's refusal to plead further.
The judgment will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.